The plaintiff was the owner of a half ticket in "the fifth class
of the National Lottery," authorized by the charter granted by
Congress to the City of Washington. The number of the original
ticket was 5591, which drew a prize of $25,000. The whole ticket
was, in the hands of Gillespie, to whom all the tickets in the
lottery had been sold by the Corporation of Washington, and his
agent issued the half ticket, which was signed by him as the agent
of Gillespie, the purchaser of all the tickets in the lottery.
After the drawing of the prize, and before notice of the interest
of any other person in the ticket No. 5591, Gillespie returned the
original ticket to the managers or commissioners of the lottery,
and the agents of the Corporation, and received back from the
Corporation an equivalent to the value of the prize drawn by it, in
securities deposited by him with the Corporation for the payment of
the prizes in the lottery.
Held that the Corporation of
Washington was not liable for the payment of half of the prize
drawn by ticket No. 5591 to the owner of the half ticket.
The purchaser of tickets in a lottery authorized by an act of
Congress has a right to sell any portion of such ticket less than
the whole. The party to whom the sale has been made would thus
become the joint owner of the ticket thus divided, but not a joint
owner by virtue of a contract with the Corporation of Washington,
but with the purchaser in his own right and on his own account. The
Corporation promise to pay the whole prize to the possessor of the
whole ticket, but there is no promise on the face of the whole
ticket that the Corporation will pay any portion of a prize to any
sub-holder of a share, and it is not in the power of a party merely
by his own acts to split up a contract into fragments and to make
the promisor liable to every holder of a fragment for a share.
It is certainly very difficult to maintain that in a court of
law, any parol evidence is admissible substantially to change the
purport and effect of a written instrument and to impose upon it a
sense which its terms not only do not imply but expressly
repel.
It is a general rule of law that a delegated authority cannot be
delegated.
This case came before the Court under an unusual agreement of
the parties, by which matters of fact, properly cognizable before a
jury, are submitted to the judgment of the court. The Court desires
to be understood as not admitting that it is competent for the
parties by any such agreement to impose this duty upon it. The
peculiar circumstances of this case furnish a sufficient apology
for this agreement, but it is not to be drawn into precedent.
Page 30 U. S. 391
The facts of the case, with the exception of those stated more
particularly in the opinion of the Court in this case, are the same
with those of the case of
Clark v. Corporation of
Washington, 12 Wheat. 40.
MR. JUSTICE STORY delivered the opinion of the Court.
The original action was brought by the plaintiff in error, to
recover the amount of one-half of the prize of $25,000 which was
drawn in a lottery authorized by the Corporation of Washington by
ticket No. 5591, of which the plaintiff asserted himself to be the
owner and possessor in the manner hereafter stated. The declaration
was for money had and received, and it was agreed by the parties to
state a case, and if upon the case so stated, the Court should be
of opinion that the Corporation was liable to the plaintiff for the
half of the prize sued for, judgment should be rendered upon the
declaration for the amount due him accordingly. It was further
agreed that the question of the admissibility, competency, and
sufficiency of the evidence to maintain the action should be
submitted to the Court, and that in considering the evidence, the
Court should draw from it, so far as it was admissible and
competent, every inference of fact and law which it would have been
competent for a jury to have drawn from it. Upon this case the
circuit court gave judgment for the Corporation, and the present
writ of error is brought to review that judgment.
The lottery was the same which was brought before this Court for
consideration in the case of
Clark v. Corporation of
Washington, 12 Wheat. 40, and the leading facts
being the same, it is unnecessary to do more than advert to those
facts which are peculiar to this case and furnish the ground of
argument to distinguish it from the former.
The decision in that case was that the lottery was the lottery
of the Corporation; that the tickets issued were the tickets of the
Corporation, contained a promise of the Corporation,
Page 30 U. S. 392
made by its authorized agent to pay such prizes as should be
drawn by them; that the sale of all the tickets in the lottery to
Gillespie, under the contract made by him with the managers, was
not a sale of an independent right to draw the lottery for himself
and on his own responsibility alone, but was in effect a sale of
the profits of the lottery for a given sum. And the reasoning in
the case shows that Gillespie became the absolute owner of all the
whole tickets signed in behalf of the Corporation and delivered to
him, but not of those unsigned, and of course the possessors of
such signed tickets, whether himself or subsequent purchasers, were
entitled to the prizes drawn to them from the Corporation as
promisees. If, therefore, the plaintiff in the present case had
been the possessor of the whole ticket which drew the prize of
$25,000, he would have been clearly entitled to recover it from the
Corporation. But the whole ticket was in the hands of Gillespie as
possessor, and it was (as the state of the facts shows) delivered
by him to the Corporation, after the prize was drawn, without any
notice on their part of any sub-interest in another; and that upon
such delivery Gillespie received back from the Corporation an
equivalent value in securities, previously deposited by him with
the Corporation for the payment of prizes. As between Gillespie and
themselves, the Corporation has paid the prize; it has paid it to
the possessor according to the terms of the ticket, and the
question is whether, under these circumstances, it is still liable
to pay to the plaintiff, as owner of the half ticket, one-half of
the amount notwithstanding it had no notice of his interest or
title.
It is in evidence in the case that all tickets sold in the
lottery were sold by Gillespie or his agents and for his benefit,
and all the moneys arising therefrom were received by him or his
agents. This was on his part a proper proceeding, for by the very
terms of the contract, he was entitled to all the tickets signed
and delivered to him, and when he sold these tickets, he sold them
as owner, on his own account, having already acquired a legal title
thereto from the Corporation.
No half or quarter tickets were ever signed or issued by the
managers of the lottery or any of them. But it is in evidence that
one Webb, as clerk of Gillespie, was in the habit
Page 30 U. S. 393
of selling whole tickets, half tickets, and quarter tickets, and
that, as the clerk of Gillespie, he sold to the plaintiff one-half
of the ticket No. 5591. The whole ticket No. 5591 was signed by the
president of the board of managers. The half or sub-ticket,
purchased by the plaintiff, was in the following terms:
"National Lottery -- Gillespie's lottery office -- No. 5591.
This ticket will entitle the possessor to one-half of such prize as
may be drawn to its number if demanded within twelve months after
the completion of the drawing, subject to a deduction of fifteen
percent, payable sixty days after the drawing is finished.
Washington City, February 7, 1821. D. Gillespie, per John F.
Webb,"
and in the margin there was an abstract of the prizes to be
drawn in the lottery.
Does this sub-ticket constitute a contract by which the
Corporation was bound to pay half the prize to the possessor, or is
it the mere private contract of Gillespie? Upon the face of the
paper, it purports to be a contract not for or on behalf of the
Corporation, but for and in behalf of Gillespie, by his agent Webb.
Gillespie, and not the Corporation, promises to pay the half prize
drawn to it. In what manner, then, can it bind the Corporation?
In the first place, it was entirely competent for Gillespie to
enter into such a contract on his own account. As owner and
possessor of the whole ticket, if he had made sale of the whole, it
would have been on his own account, for he who sells as owner
cannot, in any just use of language, be said to sell as agent. He
would have conveyed his own title as he then held it, and not as
agent of another. He would have substituted another as possessor
and transferee, to whom the original promise of the Corporation
would then have attached. But Gillespie, as owner, had also a
perfect right to sell any portion of such ticket less than the
whole. The party to whom he should sell would thus become a joint
owner with him, but not a joint owner in virtue of any new contract
made by the Corporation, but by Gillespie, in his own right, and on
his own account. The Corporation promise to pay the whole prize to
the possessor of the whole ticket, but there is no promise on the
face of the whole ticket that the Corporation will pay any portion
of the prize to any sub-holder of a
Page 30 U. S. 394
share, and it is not in the power of a party merely by his own
acts to split up a contract into fragments and to make the promisor
liable to every holder of a fragment for his share.
The language of this Court in
Mandeville
v. Welch, 5 Wheat. 277,
18 U. S. 286,
leads to a very different conclusion. If this had been the case of
a bank note payable to bearer, there is no pretense to say that a
person claiming a moiety by contract with the bearer could have
maintained a suit against the bank upon such contract for the
moiety when the note itself had been surrendered up to the bank by
the bearer. In what respect does such a case differ from the
present? Suppose, after this sub-ticket was issued, Gillespie had
sold and delivered the whole ticket to another person, having no
notice; would not the latter have been entitled to recover the
whole prize from the Corporation? If so, would the Corporation
still be liable to pay the half prize to the plaintiff? If not, in
what respect does the case at bar differ in principle from that
put, since, in legal effect, the prize has been paid to the real
possessor of the whole ticket? By the contract contained on the
face of the whole ticket, the Corporation promised to pay the
possessor of it the prize drawn by it. It has done so. How then can
its liability upon the face of the instrument be extended to claims
by persons entering into sub-contracts with the holder of the
ticket?
But in the next place, it is said that Gillespie was the agent
of the Corporation in signing and issuing these sub-tickets, and
that they are therefore evidence of a contract by the Corporation
with the holder of the sub-ticket that the Corporation will pay the
proportion of the prizes drawn by it. Let us see how far this
proposition is borne out by the evidence. In the first place, the
only evidence of such a contract with the plaintiff is the
sub-ticket itself, and that, as we have seen, purports on its face
to be a contract not of the Corporation, but of Gillespie. It is
certainly very difficult to maintain that in a court of law, any
parol evidence is admissible substantially to change the purpose
and effect of a written instrument, and to impose upon it a sense
which its terms not only do not imply, but expressly repel. Even if
it were otherwise, there is not the slightest evidence in this case
that Webb was ever authorized by the Corporation to be its agent
for any purpose
Page 30 U. S. 395
whatsoever. On the contrary, Webb himself expressly states that
he issued and sold this sub-ticket and signed the same as clerk of
and for Gillespie, and he adds that all the tickets sold in the
lottery were sold for the benefit of Gillespie. So that his own
view of the matter is that he was the agent not of the Corporation,
but of Gillespie.
But it has been argued that Gillespie was himself the agent of
the Corporation in the sale of the whole tickets, and by fair
implication in the sale of the sub-tickets also. If it were so, it
would still be difficult to show that he had a right to delegate
such authority to his clerk, or that without such delegation the
act of the clerk bound the Corporation, for the general rule of law
is that a delegated authority cannot be delegated.
But waiving any consideration of this point, let us see whether
the evidence contains any such authority to Gillespie himself. In
the first place, did he act as agent of the Corporation in selling
the whole tickets or as owner of them? The evidence in the case (as
has been repeatedly stated) is that he was the owner of the whole
tickets; that he sold them and received the moneys for them on his
own account. And if he was the owner, it is difficult to perceive
how he could act as agent of another in the sale of what was
exclusively his own property. But the whole tickets were signed by
the president of the managers and with their consent, and thus
bound the Corporation as the act of its authorized agent. None of
the sub-tickets were so signed or issued, but they were signed in
behalf of Gillespie only. This alone shows that the managers did
not contemplate the issue of any but whole tickets to bind the
Corporation. If they had contemplated any issue of sub-tickets, why
were the latter not also signed by the president and delivered to
Gillespie?
The contract between the managers and Gillespie does not contain
any provision respecting the issue of sub-tickets, nor does it
appear that Gillespie ever requested the managers to sign or
deliver any. But it is said that it may be inferred from the other
circumstances of the case that Gillespie was authorized to issue
such sub-tickets, and the advertisements published in the papers by
Gillespie, in which he announces the prizes, the names of the
managers, and the offer of whole, half, and quarter tickets for
sale raise an irresistible presumption of the
Page 30 U. S. 396
fact. We do not think so. Those circumstances are, to say the
least, quite as consistent with the exercise of this right on his
own account as with the exercise of any right as agent of the
Corporation. He was owner of all the whole tickets, and he
certainly had a right to dispose of them in any manner which he
might deem best for his own interest, whether it was in wholes, or
halves, or quarters, or any other sub-divisions. The Corporation
had no authority to obstruct or limit him in the full exercise of
this right, and any contract which he should make with third
persons for the sale of sub-interests in a single ticket, the
Corporation had as little to do with as they would have with a
contract to sell a hundred or thousand tickets to the same persons.
Its contract was to pay the possessor of the whole ticket any prize
which it might draw. Beyond that, it was not bound to inquire into
or take notice of any sub-interest, whether equitable or legal,
acquired under Gillespie. In point of fact, it should seem, as well
from Webb's testimony as from the conduct of Gillespie, that he so
understood the matter, for there is no evidence that he ever made
any returns to the managers of the issues of such sub-tickets, or
in any other manner consulted them on the subject, or that it took
any step to guard itself from a double issue of the whole ticket or
of sub-tickets of the same number. When the managers took so much
care to limit and control the issue of whole tickets by refusing to
sign them except as Gillespie furnished them with security for
payment, is it to be believed that it had yet entrusted him with an
unlimited power to issue sub-tickets binding the Corporation which
might and indeed would defeat the whole effect of these
precautions? It seems to us not, and the very form of the
sub-ticket itself is strong corroborative evidence to repel the
presumption that the Corporation intended to bind itself otherwise
than by the written signature of one of its own managers, who were
specially deputed to conduct the sale and drawing of the lottery,
and there is much reason to doubt if the managers could have
deputed their rights or duties in this respect to any third person
so that he could enter into contracts for and to bind the
Corporation.
Upon the whole, it is the opinion of the Court that the
plaintiff in this case is not entitled to recover, his
Page 30 U. S. 397
contract not being with the Corporation or its agent, but solely
with Gillespie.
This view of the case renders it unnecessary to consider the
other question made at the bar, whether the lottery was or was not
illegal in its scheme and origin.
This case has come before the Court under an unusual agreement
of the parties by which matters of fact properly cognizable by a
jury are submitted to our judgment. We desire to be understood as
not admitting that it is competent for the parties by any such
agreement to impose this duty upon the Court. The peculiar
circumstances of this case furnish a sufficient apology for this
agreement. But it is not to be drawn into precedent.
The judgment of the circuit court is affirmed with
costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington, and was argued
by counsel, on consideration whereof it is considered, ordered, and
adjudged by this Court that the judgment of the said circuit court
in this cause be and the same is hereby affirmed with costs.